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Topic
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We recently moved in as owners to a small strata block. The retail space directly underneath our apartment has leased to a professional gym. We have been talking with the owner over the last few months and they have made some adjustments to the level of noise. Although we continue to hear thudding.
The gym operates from 5.30am in the morning to about 8am and again in the evening for a few hours. The noise is most noticeable from 5.30am onwards.
We spoke to the council who arrived twice at the wrong time to conduct a sound test with a accredited sound technician. Although we all agreed the timing was wrong and the sound not an issue at the time (in the evening) the council did offer to rethink coming back but has now confirmed there are no sound breaches under the Act based on the testing they did. We have not been provided the DA and our strata manager can’t seem to get a copy either.
The sound technician later approached the owner and they both agreed to further testing. The owner was surprised at the results and unofficially they have said this is more than the allowed noise level.
We are unsure where to go from here as the council won’t do any further testing and say there is no noise issue. The owners are making some attempts to take on the technicians recommendations but we have no accountability measures to ensure this happens. The strata committee are not interested in taking this further – many of them attend the gym and can’t understand our concerns. The strata manager has not replied any further regarding our concerns.
I am wondering if this is a breach of the bylaws (regarding not disturbing the peace and quiet enjoyment of others) given the gym is a retail tennant.
We are concerned that the council has approved the retail space to be recreational and that there is no consideration about noise to residents except that allowed level which is still causing noise and irritation to residents.
Do you have any advice, should we be seeking legal advice?
regards
Noiseaffected
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NoPain – In my opinion you have a couple of avenues to explore: (1) The Lease conditions and whether they have been breached, and (2) the by-laws and whether they have been breached.
Try and obtain a copy of the Lease from your strata manager. Is there a By-law for the lease? What are the conditions of the lease? How long does the Lease have to run? Are there any conditions in the Lease between your Strata scheme and the gym owner regarding hours of operation, noise etc? Is the gym owner complying with the conditions?
NB: Did the acoustic technician suggest any ways that the gym owner could lessen the noise and/or vibrations from the thud of the dropped weights?
Also, obtain a copy of the by-laws from your strata manager. What By-laws does your scheme have regarding the issues of: noise, nuisance, behaviour of invitees etc?
The gym owner may be breaching various by-laws.
You stated: The strata committee are not interested in taking this further – many of them attend the gym and can’t understand our concerns.
In my opinion this is an unreasonable attitude for the SC to take, particularly given that you have proof from an acoustic technician that the noise level is excessive.
The fact that the majority of residents may not experience excessive noise does not necessarily mean that unreasonable noise has not occurred. If even one person has been subjected to an objectively unreasonable interference, a by-law breach may have occurred.
From case law, on the flip side of that argument is that the nuisance “needs to be an inconvenience that materially interferes with the ordinary notions of a ‘plain and sober’ person, and not merely the ‘elegant or dainty’ habits of the complainant”.
The SC has a duty to act on behalf of the OC. The OC is responsible for the management of the strata scheme and the common property for all owners in the strata scheme [s9]. The leased area would be deemed to be common property.
If an SC has good reason to believe that a by-law has been breached, it would arguably be unreasonable not to take action to pursue the matter if the breach is material or is adversely affecting any owner or occupier. There is a requirement to comply with the by-laws
. A notice to comply with the by-law must be issued by the OC rather than the SC. The notice to comply must be decided by the OC at a General Meeting.If the SC are unwilling to listen to your concerns about the gym regarding the possible breach of the lease conditions, or a possible breach of the by-laws with regard to noise, nuisance, behaviour of invitees etc then you could seek mediation through the Office of Fair Trading. Other steps can be taken after that.
@CMartin said:
Thank so lady Penelope for your reply. I have spoken to the strata manager who has advised that the residential and retail space are under different by laws so neither by laws apply to each other and therefore no one is breaching these as they don’t apply.If they are part of the same strata scheme then they come under the same by-laws, even though they may have by-laws specific to them. If they are separate strata schemes (unlikely)there is still relief available under section 233 of the strata Act.
Apparently the DA has approved the operating and sound levels and because the council has been out and deemed there are no sound breaches they are not breaching the lease.
Your local council will have noise laws that more or less match EPA sound nuisance laws. Have a look here for more specifics. A DA to run a gym does not give them the right to make excessive noise in prohibited hours. The coucil has piut this in the “too hard” basket. You need to get it back on their desks.
The EC in my view is very self interested there are certain things they take up but one member has clearly text the group to say our issue is only affecting one resident.
This is the most pathetic “do nothing” argument ever used in strata. The OC has a duty to look after all residents – including lone sufferers – and if there is a conflict, they should support the one who’s not breaking the law against the one who is.
I feel the EC and strata manager and the council are all negligent in taking this seriously and they all seem to think we should have to live with it or live somewhere else. Thanks for your comments, I guess legal advice is our next step.
You could perhaps tell them you are taking a Section 232 against them at NCAT and that you will apply to have all legal costs paid to you and you will make sure that all the other owners who will have to pay a special levy to cover your costs know that it’s because their committee refused to do the right and reasonable thing.
Also, you have the option of taking noise abatement orders against the gym and, given that your strata committee sounds like it has taken sides, this may be your best option. Have a look at the above link to the EPA web page.
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I posted THIS LINK in my previous answer. You will find reference to various options under Environmental Protection laws.
The critical issue here is that a DA permitting them to run a gym does not necessarily imply that they are allowed to disturb your peaceful enjoyment of your home.
A gym could, for instance, hold one of those spin classes where everyone wears headphones and there is no noise. Or it could run yoga or pilates classes.
Noise is not an essential element of a gym and unless it specifies that noise is allowed in the DA, it shouldn’t make any difference.
FYI, here is how the government defines offensive noise (emphasis mine):
What is offensive noise?
The definition of offensive noise in the POEO Act is noise:
(a) that, by reason of its level, nature, character or quality, or the time at which it is made, or any other circumstances:
(i) is harmful to (or is likely to be harmful to) a person who is outside the premises from which it is emitted, or
(ii) interferes unreasonably with (or is likely to interfere unreasonably with) the comfort or repose of a person who is outside the premises from which it is emitted, or
(b) that is of a level, nature, character or quality prescribed by the regulations or that is made at a time, or in other circumstances, prescribed by the regulations.
For further information about what constitutes offensive noise see the Noise Guide for Local Government.
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If it’s another completely separate strata scheme, I can’t see where mediation would come in. It’s certainly not a strata issue.
Your council should have some means of making a noise complaint. It sounds like they are not in breach of their DA but are in breach of the EPA. So pursue that and think about seeking a noise abatement order at your local court.
Noise abatement orders are explained in the links posted previously.
Your strata committee should be a bit more supportive on this but you can do it without them if need be.
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